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<p>CHAPTER 2 NATURAL RIGHTS AND NATURAL LAW DENNIS KLIMCHUK aim in this chapter is to make a case for the continued relevance of what I will call the natural law tradition to inquiry into the philosophical foundations of private law. I say "what I will call because more than one idea answers to the name "natural law." One is a view in general jurisprudence, associated with, for example, Aquinas and Blackstone. In its classic form, natural law theory in this sense is the view according to which a condition of a rule's claim to be law is its conformity with substantive princi- ples of morality or justice that have as their object the conduct the rule aims to govern. A second idea associated with "natural law" is the view according to which conformity with human nature and securing the conditions of its proper realization are the guiding ideals of moral and political life. Aquinas represents this tradition as well; the classic formulation is in Aristotle. I don't mean to refer to either of these. The tradition I have in mind is the arc in the history of political philosophy that starts in Grotius and ends in Kant. Not everyone in this tradition was a social contract theorist, but even those who were skeptical of the explanatory and justificatory value of the idea of a social contract agreed that political and legal authority was, in part, a matter of convention. Only in part, though: they were natural lawyers because they held that there were nonconven- tional principles-laws of nature-to which our conventions must conform if they are to claim My goal here is to suggest a way of reading this tradition that brings out its enduring relevance. I'll begin by considering the case against the very idea. 1 Some were natural lawyers in one or both of the other senses. This is not a historical accident; nor is it a conceptual necessity.</p><p>22 DENNIS KLIMCHUK I. NATURAL LAW SKEPTICISM In an introduction to an earlier symposium on the theme, John Goldberg characterized the New Private Law as set against a jurisprudential orientation he called "brass tacks pragmatism," according to which "being pragmatic in one's thinking [as one ought to be] involves getting past mere appearances to what is 'really' going on in the law."2 A par- ticularly stark expression of brass tacks pragmatism is the view, most closely associated with Holmes but also counted by Llewellyn as among the points of departure common among the realists, that, in Holmes's words, the object of the study of law is "the predic- tion of the incidence of the public force through the instrumentality of the courts."4 This formulation makes a compelling case for Goldberg's claim that a kind of private law skepticism is implicit in brass tacks pragmatism. On the view that courts are instru- ments though which public force is exercised, a complete account of private law would explain away, rather than explain, its doctrines and concepts. It is pretty clear that, on an approach to law according to which (again in Holmes's words) "[t]he primary rights and duties with which jurisprudence [busies] itself are nothing but and bear only accidental points of correspondence with the extralegal senses in which "right" and "duty" are used, the idea that the natural law tradi- tion has something to offer to the study of private law would likely get little sympathetic hearing. A more friendly audience might be expected in the New Private Law. But even that audience, and readers of this Handbook, might regard the natural law tradition with suspicion. The main worries can, I think, be collected into two groups. First, you might think that, even from the perspective of the inclusive pragmatism that (on Goldberg's account) characterizes the jurisprudential stance of the New Private Law, theorists in the natural law tradition are too metaphysical, too theological in their foundations, and too foundational in their aspirations. The second worry is the mirror image of the first: that the natural lawyers were, if anything, not metaphysical enough; that their accounts were mere instruments in the service of morally objectionable ends. The first worry can, I think, be answered fairly easily. While the language of natural law and natural rights has an ontologically audacious ring to it-there is a Thomistic air to, for example, Hobbes's claim that "the laws of nature are immutable and the early modern political philosophers' understanding of natural laws was metaphysically quite deflationary: Hobbes continued, "for [acting in breach of the laws of nature] can never be made lawful. For it can never be that war shall preserve life, and peace destroy And while many philosophers in this tradition refer to scripture and infer God's intentions from the structure of the natural world as they saw it, for the most part their claims were that reason and scripture are alternative, consistent, and equally authoritative grounds of 2 John C.P. Goldberg, Pragmatism and Private Law, 125 HARV. L. REV. 1640, 1645 (2012). 3 Karl Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1237 (1931). 4 Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897). 5 Id. at 162. 6 Thomas Hobbes, Leviathan 99 (Edwin Curely ed., 1994) (1651). 7 Id. at 100.</p><p>NATURAL RIGHTS AND NATURAL LAW 23 justification. 8 The independence was most starkly and (in)famously cast by Grotius when he wrote that "what we have said here would still have great weight, even if we were to grant, what we cannot grant without wickedness, that there is no God, or that he bestows no regard in human affairs."9 And as a general point, I think there is much to be said in favor of readers of the early modern tradition who argue that the evidently nonpolitical premises on which philosophers such as Hobbes represented their argument as having been built are, and would have been received by their audiences as, really The second ground of natural law skepticism, that the natural lawyers deployed the idea of laws of nature as mere instruments in the service of morally objectionable ends, is not quite so easily dismissed. Grotius's first treatment of property, for example, was in a commissioned by the directors of the United Dutch East India Company (VOC), who asked Grotius to provide a brief in defense of the seizure of the Portuguese ship Santa Catarina in the straights of Singapore by Jakob van Heemskerk, a Dutch admiral acting in service of the United Amsterdam Company (a precursor of the VOC). It is not particularly conspiratorial to see his accounts of private law as resources deployed in the service of the vindication of Dutch commercial expansion in the Indies, and of violent means taken to that end. Similarly, James Tully has argued that "the cen- tral sections on labour, value, and commodities" in Locke's treatment of property are designed to legitimate and to celebrate the superiority of English colonial mar- ket agriculture over the Amerindian hunting, gathering, and replacement agricul- ture that it forcibly displaced. The destruction of centuries-old native American socio-economic organizations and the imperial imposition of commercial agricul- ture is made to appear as an inevitable and justifiable historical development. 12 While I am not sure we can draw the inference Tully does about Locke's ultimate ends from the ways in which his account could be deployed as means to them with quite the confidence he does, there's no doubt that this is something troubling here. And Locke's hands were elsewhere unclean, for example, when it came to American slavery. 8 If there is an exception here, it is probably Locke, for whom, a case can be made, theology is not easily disentangled from philosophy. See Jeremy Waldron, God, Locke and Equality: Christian Foundations in Locke's Political Thought (2002). My view, implicit in the reading of Locke's account of property outlined later is that we can start with Locke's egalitarianism, without having to engage the question of its foundations. 9 Hugo Grotius, The Rights of War and Peace, Preliminary Remarks xxvii (William Whewell ed., 1853) (1625). 10 See Don Herzog, As Many as Six Impossible Things Before Breakfast, 75 CAL. L. 609 (1987); Arthur Ripstein, Foundationalism in Political Theory, 16 PHIL & PUB. AFF. 115 (1987). Hobbes himself suggests this understanding, in the preface to De Cive, where he reports that while it represents the final part of a projected three part work-the first planned to discuss "body and its general properties" and the second "Man and his particular faculties and decided to publish it before completing the first and second because the political times called for it, and "especially as I saw it did not need the proceeding parts, since it rests upon its own principles known by reason." 11 Hugo Grotius, De Jure Praedae Commentarius, translated as Commentary on the Law of Prize and Booty 316 (Martine Julia van Ittersum ed., 2006) (1868). 12 James Tully, An Approach to Political Philosophy: Locke in Contexts 162 (1993). 13 See Wayne Glausser, Three Approaches to Locke and the Slave Trade, 51 HIST. IDEAS 199 (1990).</p><p>24 DENNIS KLIMCHUK Further stock for this second ground of natural law skepticism can be found in many examples of the use to which the ideas of natural rights and law were put by lawyers and judges. In R.H. Helmholz's careful study, Natural Law in Court, for example, we learn that in England natural law was invoked to deny legal status to and to deny that a son-in-law had any duty to support his wife's impecunious parents. 15 While not on the immoral order of defending colonialism, arguments such as these could reasonably enough lead one to be doubtful that there is much to be gained, morally, from reaching back to the natural law tradition. 16 These judicial examples and the broad variety of doc- trines for which the law of nature has been invoked in support might suggest a third worry: that "natural law" is an empty idea, a placeholder whose substantive content is filled with particular, contingent moral judgments of particular, contingent moral communities. Against this I will argue that among the philosophers in the natural law tradition we find a set of commitments and concerns that, if particular and contingent, are nonetheless shared by us. Philosophers such as Grotius, Pufendorf, and Locke presented their accounts as freestanding arguments from principle and observation. I propose to take them as thus represented and see what we find-to ask what they were arguing and arguing about, independently of the political motivations we may find they had in reaching the conclusions they did. I will focus on private property, in particular on arguments about its foundations and limit in the right of necessity, both for the sake of space and because private property was a special preoccupation among philosophers in the early modern period. Even within these limits, I will have to be selective. My aim is neither to provide a comprehensive sur- vey nor to defend any substantive view in particular. Instead what I hope to make a case for is a way to read the tradition and a view about what was at stake in the debates that charac- terized approaches to property in it, and I will do SO by example rather than by a general argument. What I hope to show is that, understood this way, the natural law tradition pro- vides a rich set of conceptual resources for the New Private Law, or, indeed, any approach to private law that takes it deontic vocabulary at face value. But first, to set the stage, a (true) story. II. THE LEVELLERS AND THE DIGGERS On October 23, 1647, the Council of the New Model Army met in the church in Putney to discuss "The Case of the Army Truly Stated," a pamphlet co-authored by members of a group of Army officers and civilians who would soon come to be known as the Levellers, some of whom had been invited to participate. "The Case" raised concerns about the terms on which Army leadership seemed prepared to accept Charles I's return 14 R.H. Helmholz, Natural Law in Court 96 (2015). 15 Id. at 104. 16 On the other hand, Helmholz recounts the deployment of natural law in judicial arguments against slavery, in both English and American law (id. at 108-109, 161-165), drawing on an association between natural law and equality that I will argue is at the heart of the natural law tradition.</p><p>NATURAL RIGHTS AND NATURAL LAW 25 to power. On the day before the meeting, however, another pamphlet was circulated called "An Agreement of the People," and it was that document that was the subject of what we now call the Putney Debates. The "Agreement" contained a draft of a proposed written constitution outlining the freedoms many soldiers thought they had been fight- ing to secure. The second day began with a reading through of the document and then again the first article, which begins: That the people of England being at this day very unequally distributed by counties, cities and boroughs for the election of the deputies in parliament, how to be more indifferently proportionate according to the number of the inhabitants Here, before it could be Commisary-General Henry Ireton (Oliver Cromwell's son-in-law) interrupted. His worry was that with "according to the number of inhabitants" the drafters smuggled in a controversial bit of franchise reform, by impli- cation abolishing the requirement that only persons with property worth a minimum of forty shillings could vote. And indeed that was their intention. Colonel Thomas Rainborough famously replied: [R]eally I think the poorest he that is in England has a life to live as the greatest he; and therefore truly, sir, I think it's clear that every man that is to live under govern- ment ought first by his own consent to put himself under that government, and I do think that the poorest man in England is not at all bound in the strict sense to that government that he has not had a voice to put himself under. 18 If that is what is meant by "according to the number of the inhabitants," Ireton replied in turn, then to justify it "you must fly for refuge to an absolutely natural right and you must deny all civil He justified the traditional, conventional, rule on two 20 First, only persons with a permanent interest in England could be expected to vote with the long-term good of the nation in view. If the property-less could vote, why not foreign visitors? Second, with property came independence. Indeed, even some Levellers were persuaded that servants should not vote, because they would vote as their employers asked. The property requirement, Ireton emphasized, treated everyone who passed its threshold equally. Abolishing it would have the effect of increasing the influence of the wealthy. Rainborough was unmoved: "I'm a poor man, therefore I must be oppressed? If I have no interest in the kingdom, I must suffer by all their laws-be they right or wrong?"22 17 The proceedings were recorded in remarkable detail. 18 Extract from the debates at the General Council of the Army, Putney, in The English Levellers 103 (Andrew Sharp ed., 1998). 19 Id. at 103. 20 Id. at 108. 21 Id. at 130. 22 Id. at 102.</p><p>26 DENNIS KLIMCHUK Ireton and Rainborough, then, were not in disagreement over whether equality is a governing substantive ideal in a just constitutional structure. They were disagreeing about what respecting it requires, and doing so, in part, through the question of the rela- tionship between natural and positive law. My suggestion is that this is a (I'm tempted to say the) central theme running through the natural law tradition. Arguments about nat- ural law and what it requires are really just arguments about what nonconventional principles constrain the arrangements we enter into through adopting the laws by which we govern ourselves. The principal substantive constraint is our moral equality, the starting point of the early modern tradition in political philosophy. So far this is about the fundamental constitutional principles. A link to private law is drawn by what Ireton presents as a of the Leveller position. "If you will hold forth [natural law] as your ground" (and Ireton thought there could be no other basis for the Levellers' bid for franchise reform), then I think you must deny all property too, and this is my reason. For thus: by that same right of nature (whatever it be) that you pretend, by which you can say that one man has an equal right with another to the choosing of him that shall govern him-by same right of nature he has the same equal right in any goods he sees: meat, drinks, clothes, to take and use them for his sustenance. He has a freedom to the land, to take the ground, to exercise it, till it; he has the same freedom to anything that anyone does account himself to have any propriety in. 24 The Levellers were quick to deny this (in the Debates, by appeal to natural law in another sense: Rainborough replied to Ireton that to draw his interference is to forget the Law of God, which commands that Thou shalt not steal). The True Levellers, as a group we now call the Diggers called themselves, however, embraced Ireton's inference. The Diggers were radical egalitarians and communists who occupied and cultivated a number of small tracts of waste land, land privately owned but left unused by its owners. Their most prolific and celebrated spokesperson was Gerrard Winstanley. Among his writings were a series of pamphlets published as the first group of Diggers settled on a plot of land at St. George's Hill in 1649. What I will call Winstanley's challenge25 is expressed in an argument he makes in the first of these pamphlets, "The True Levellers Standard." There he argues that God is "mightily dishonoured" by the state of affairs in which the world is held by a few who buy and sell it among themselves, "as if he were a respecter of persons, delighting in the comfortable livelihood of some, and rejoicing in the miserable poverty and straits of God is dishonored because this inequitable state of material affairs is 23 Equality sets the problem for which the social contract is a solution: if by nature I have no reason to defer to your judgment, nor you to mine, how can we settle our disputes? 24 Sharp ed., supra note 18, at 108. 25 I am drawing here, and in the first part of the next section, on my earlier work in Dennis Klimchuk, Property and Necessity, Philosophical Foundations of Property Law (James Penner & Henry E. Smith eds., 2015). 26 Winstanley: "The Law of Freedom" and Other Writings 78 (Christopher Hill ed., 1983).</p><p>NATURAL RIGHTS AND NATURAL LAW 27 inconsistent with our moral equality. On Winstanley's account, furthermore, relations of domination are not a contingent effect of private property, but instead are essentially bound up with it. "In the beginning of time," Winstanley says, the great creator Reason, made the earth to be a common treasury, to preserve beasts, birds, fishes, and man, the lord that was to govern this Creation; for man had domination given to him, over the beasts, birds, and fishes; but not one word was spoken in the beginning, that one branch of mankind should rule over 27 It follows from each of us having been created as a "teacher and ruler within himself," that is, not naturally subject to anyone else's authority, that the world is held in common. Winstanley's critique of private properly is expressed through a set of robustly theo- logical and teleological claims. But we can extract from Winstanley's account a meta- physically neutral challenge to private ownership. The challenge is that equality, understood in a particular way, seems inconsistent with private property. For Winstanley, we are equals in the sense that no one is naturally subject to another's authority. By claiming ownership of, say, a piece of land, I claim the right to exclude oth- ers from it even when I am not using it: that is, to unilaterally subject them to my author- ity. But that seems inconsistent with our being equals. That is Winstanley's challenge. The understanding of equality implicit in Winstanley's account is shared by Grotius and Locke. So we can fairly ask how they answer his challenge. III. GROTIUS AND LOCKE ON THE FOUNDATIONS OF PRIVATE PROPERTY On Winstanley's view, no one can show that she has a special claim to a particular part of the world, to the exclusion of all others with whom she shares it. 28 Grotius, I imagine, would have replied: ownership does not really amount to a claim to a piece of the earth. It is rather a claim against others, pursuant to an arrangement we make among our- selves, to have exclusive rights to use a part of our common world. On Grotius's account, we start in a state of common ownership in the limited sense that each of us has a right to the resources of the world, and no one has a right to prevent us from using them. Working out from the exclusion implicit in use we came, through our practices, to rec- ognize a right to exclude free of the requirement of actual, present The regime of private property, on this understanding, is an arrangement governing use that arises by tacit agreement. As David Lewis suggested, a tacit agreement is really 27 Id. at 77. 28 I am generalizing a point made by Winstanley in "An Appeal to the House of Commons," id. at 120. 29 See Grotius, Commentary on the Law of Prize and Booty, supra note 11, at 316.</p><p>28 DENNIS KLIMCHUK just a and need not involve anyone's explicitly agreeing with anyone. Lewis's model of a convention was Hume's: "[T]wo men pull the oars of a boat by com- mon convention, for common interest, without any promise or contract; thus gold and silver are made the measures of exchange: Thus speech and words and language are fixed by human convention and agreement."31 Hume himself licenses interpolating this understanding of the conventionality of property into Grotius's account, remarking at one point that his account of property is "in the main, the same with that hinted at and adopted by Grotius."32 On this account, the conventionality of property is a fact, and perhaps saying prop- erty is conventional in this way does not justify private rights of ownership. But this is arguably not an objection to Grotius, at least on his own understanding of what an account of property must do. The theory of property, as Grotius develops it, does not bear the burden of justifying the adoption of private property. What it does, rather, is explain how it is possible and set the conditions under which it is permissible. Put another way, for Grotius the question whether we ought to adopt private property is a question about the good, and the theory of property, strictly speaking, concerns the right but not the good. Though the conventionality of property, understood this way, does not justify private rights of ownership-it does not aim to-it goes some way to answering Winstanley's challenge. If the regime of private property comprises a convention among ourselves setting the conditions of exclusive use, its adoption is a permissible departure from the original community of ownership even if one holds, as arguably Winstanley did, that each of us has an inalienable right to the common ownership of the Indeed, it is a crucial element of Grotius's account that there is a sense in which the right to common ownership survives the adoption of private property: you might even say that on his account, too, it is inalienable. While private property exists as a conven- tion, there are constraints on the forms it may take. Some consist in first-order substan- tive rules, such as the law against theft. Others, such as the right of necessity, derive from a second-order principle that I will call the foundational presumption, according to which "we must consider what was the intention of those who introduced private prop- erty: which we must suppose to have been, to recede as little as possible from natural equity."3 On what I believe to be the best interpretation of the text, "natural equity" refers not to the original use right directly but rather to the equality to which it gave expression. In holding that neither you nor I need the other's permission to use the world's resources in a state before the institution of private property Grotius represents 30 David Lewis, Convention 35 (1969). 31 David Hume, "An Enquiry Concerning the Principles of Morals," in Hume's Enquiries 306 (P.H. Nidditch ed., 3d ed. 1975). 32 Id. at 307. 33 I owe the idea that we can think of Winstanley's view this way to Sarah Bittman. 34 Grotius, The Rights of War and Peace, supra note 9, at 72. 35 I defend this interpretation in Dennis Klimchuk, Grotius on Property and the Right of Necessity, 56 J. HIST. PHIL. 239 (2018).</p><p>NATURAL RIGHTS AND NATURAL LAW 29 the idea that we enjoy the kind of moral independence from one another that I sug- gested forced Winstanley's challenge. It is from this state that we must suppose that those who introduced private property intended to recede as little as possible. We must suppose this because it is a condition of the legitimacy of conventions we adopt. Grotius's idea is this: whatever form private property takes, it must respect the moral equality we enjoyed before its introduction (as expressed in the original use right), and as a condition of doing so, the right to exclude may extend only far as is necessary to realize the ends for the sake of which we adopt private property. This entails, for exam- ple, the right of necessity because we can achieve the material benefits private ownership makes possible without enjoying a right to exclude that makes into trespasses others' life-saving uses of our property. Grotius's answer to Winstanley's challenge is that when the institution of private property respects the foundational presumption, it makes that institution consistent with our equality in the sense that he shares with Winstanley and Locke. Locke, however, would have rejected the idea that private property rights arise merely as a matter of a convention. If the consent of all others was necessary before I could con- sume anything, Locke argued, then "Man had starved, notwithstanding the Plenty God had given Thus Locke sought a nonconventional account of the right of original acquisition. Because in the second chapter of that volume Locke argues that we are all equal in that we are subject only to the law of nature and not, by nature, to any else's authority 4), we can think of Locke as trying to answer Winstanley's challenge on its own terms. And here appears the account for which Chapter Five of the second Treatise of Government is most famous: anyone may gain ownership over something in the com- mons by mixing one's labor with it, subject to the limitations that enough and as good is left for others and that what one takes does not spoil before one can use it. We can divide this into two components: an account of the ground of original acquisition and an account of its limits. The ground of the right of original acquisition is the mixing of one's labor with the object of ownership. This makes an unowned thing one's own because each of us already has property in our persons and so, Locke argues, in our labor and in the work of our hands. The limits are the rules that one leave enough and good for others and that what one takes does not spoil before one can use it. Gopal Sreenivasan argues that we can find a second account later in Chapter This account in effect promotes what counts as a limit to original acquisition in the first to a freestanding basis for it. "[H]e that leaves as much as another can make use of," Locke argues (we could add on his as good"), "does as good as taking noth- ing at all" 33). In other words, original acquisition is permissible when and because it leaves things no different for others. Each account seems vulnerable to important objections. The first invokes a sequence of ideas that seem mysterious: that my relationship to my person is a kind of ownership, 36 John Locke, Two Treatises of Government 228 (Peter Laslett ed., 1960). 37 Gopal Sreenivasan, The Limits of Lockean Rights in Property 47-50 (1995).</p><p>30 DENNIS KLIMCHUK that from that I gain title to my labor and its products, and that in mixing something I own with something I do not, I gain ownership of the latter (rather than losing owner- ship of the More basically, it is not clear how the argument does not assume what it aims to show. No amount of your laboring on my garden will make the fruits of your labor your property unless I have made that arrangement with you. Why is original acquisition different? Similarly, if the costlessness of your use of my property does not thereby make it permissible, it is not clear how one can infer a right of ownership from the fact of the material nonconsequences of the possession from which that right is pur- ported to follow. I think that there is a way to read Locke that unifies these two accounts and goes some way to answering these objections, by suggesting that they are based on misunderstand- ings. The first step is to be cautious in what we find in Locke's claim that each of us has a property in our persons. I think by having a property in something Locke means having a right in rem to it, and by having a property in our persons he means nothing more mysterious than that our persons cannot be deployed by others without our permission. We get to property, to things other than our persons, by a link suggested by what I repre- sented as the second account. Just after the passage quoted earlier, Locke continues: He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another's labour: if he did, it is plain he desired the benefit of another's pains, which he had no right If without my permission you pick the fruit from my orchard I've grown, you are an advantage-taker; you are, in effect, retroactively deploying my person without my per- mission. A violation of my property rights, on this view, is thus a failure to treat me as an equal in just the same way that a wrong to my person is. Locke's answer to Winstanley is that acquisition that respects the limits Locke imposes on it respects the terms of equal- ity that Winstanley thought rendered private ownership impermissible. By putting Grotius and Locke on the same page this way, you may think I have obscured a crucial difference between the two, namely, that Grotius held that property arises as a matter of convention and Locke as a matter of natural right. But wait. For Grotius, the problem that Locke found with the idea that property was a matter of convention-that if it was necessary to secure consent before consuming any resources "Man had starved, notwithstanding the Plenty God had given not arise, for two reasons. The first is that, as we saw, Grotius allows that tacit consent is sufficient to put a regime of private property in place. The second, and deeper point, is that for Grotius, the concept of private property is required to do less work than it is on Locke's account. What it does is explain how I can be wronged by another's interference with land or a 38 See the discussions in Sreenivasan, id. at 59-92, and A. John Simmons, The Lockean Theory of Rights 236-277 (1992). 39 Locke, supra note 36, at 291.</p><p>NATURAL RIGHTS AND NATURAL LAW 31 thing, though I am not currently in possession of it. But it is not (and need not be) invoked when I exercise the right to use the world's resources prior to the adoption of a regime of private property. That I have a natural right to, as Locke, too, insists I must. On this, then, they agree. What they part ways on is when "property" begins. This, and their other dif- ferences, should not distract us from appreciating they were engaged in the common undertaking of determining which nonconventional constraints need to be imposed on the conventions we adopt to render the regime of property consistent with our equality. IV. GROTIUS AND PUFENDORF ON NECESSITY On Grotius's account, the right of necessity is, in effect, a property right. In using your property to save myself, I am exercising a right I have to its use, which correlates to a limit on your right to exclude. Here a puzzle arises: if the property is mine to use, why do I owe you compensation for any damage I cause (as I do, on Grotius's account)? Grotius's answer is that "more is not to be taken than it [the necessity] requires; that is, if keeping the thing is sufficient, it is not to be used; if using it is sufficient, it is not to be destroyed; if destroying it is requisite, the price is to be repaid." His argument is that damaging and not repairing when I am able to set things right is just like keeping when all I needed to do is borrow. It is taking more than I have a claim to-it is to recede further from nat- ural equity than is required. In reply to Grotius, Pufendorf argued that the simpler explanation is that I owed you compensation because the right of necessity is not a prop- erty right but rather a right against another to the use of her property. It is interesting to isolate on just what their disagreement turned. For Pufendorf, as for Grotius, private property exists by convention, permitted but not established by natural law. The most important reasons advanced for its adoption, on his telling, are that by instituting private property, the quarrels arising from the origi- nal community are avoided and that "the industry of men is thereby increased."4 More important for our purposes is that on Pufendorf's account, "[c]ertainly property was not distinguished with the purpose of allowing a man to avoid using it in the service of others, and to brood in solitude over his hoard of riches."4 Instead, we all have a duty to help those in need whether enduring or, as in necessity, fleeting. That said, "such is the force of ownership," Pufendorf says, that I may dispose even of property I owe another, and she cannot simply come and take it from me even though I am under an obligation to transfer ownership to her. "If, however" and here we see the foundation for Pufendorf's account of the right of necessity being laid- owner refuses of his own accord to meet his obligation, the power of ownership is by no means great that 40 Grotius, The Rights of War and Peace, supra note 9, at 400. 41 Samuel Pufendorf, The Rights of Nature and of Nations 301 (C. H. Oldfather & W.A. Oldfather eds., 1934) (1672). 42 Id.</p><p>32 DENNIS KLIMCHUK property owed another may not be taken from an unwilling owner, through the author- ity of a judge in commonwealths, or, in the state of natural liberty, by the might of Now, "from the point of view of mere natural right," Pufendorf tells us, "a man is expected only on the basis of an imperfect obligation, in far as it arises from the virtue of humanity, to aid another in the latter's extreme necessity."44 It is permissible for a pol- ity to strengthen this obligation into a perfect one by civil law, for example, by compel- ling contributions to the poor. What, however, if the obligation does not exist by positive law? Pufendorf answers with two rhetorical questions: [I]f such a precaution is not taken for the poor in some particular commonwealths, and if the obdurancy of men of means cannot be overcome by prayers, while there is no means whereby a person may come to the aid of the man who is in want either of money or assistance, would you have him die of hunger? Can any human institu- tion have such power that, if another neglects to do his duty toward me, I must per- ish rather than depart from the customary and usual manner of The (implicit) answer is no. He continues: I should not feel, therefore, that a man has made himself guilty of the crime of theft if when he has, through no fault of his own, fallen into extreme want of food neces- sary to maintain life, or of clothing to protect his body from the bite of cold, and has been unable either by entreaties, or money, or the offer of his services, to get other in easy circumstances, and even in luxury, to give them to him of their own accord, he should make away with them by violence of by stealth; and especially so if he intends to make good their value whenever a kindlier fortune may smile upon him. 46 Let's call the man Pufendorf describes in his example the "needful taker." Left unex- plained by Pufendorf is precisely how the needful taker's circumstances, conjoined with the property owner's refusal to aid, make it that he would not wrong the owner by seiz- ing his land. This needs explaining because the owner's duty is imperfect and Pufendorf states often that those to whom an imperfect duty is owed cannot compel its perfor- mance by force or through the law. One answer would be that the needful taker's cir- cumstances, conjoined with the property owner's refusal to aid, somehow perfects the latter's duty. That gives the needful taker a perfect right to possession or use of the prop- erty (as the facts require) and, we might say, the urgency gives him authority to execute the right. But this transformation is rather mysterious, and, while Pufendorf is quite elliptical in this passage, it strikes me that he is careful not to say this. I think there is a better way to reconstruct Pufendorf's argument on this point. It rests on a particular claim about imperfect duties. Pufendorf tells us that the imperfect duty to aid is owed "on grounds of humanity" and that with it a person is given the opportunity to show that "his mind is intent upon voluntarily doing his duty."47 One who refuses another aid in necessitous circumstances, 43 Id. at 302. 44 Id. 45 Id. 46 Id. 47 Id. at 305.</p><p>NATURAL RIGHTS AND NATURAL LAW 33 he continues, reveals that he considers such an attitude superfluous. Ordinarily, one has discretion in how to discharge an imperfect duty. Pufendorf's thought seems to be that in some circumstances, that is not Let's say that in such circumstances an imperfect duty becomes determinate. The idea can be helpfully explicated in the terms with which Kant explains imperfect duties. 48 On Kant's account, an imperfect duty is a duty to adopt a particular end. In con- trast, perfect duties require that one act or forbear from acting in particular ways. It is a perfect duty to pay one's taxes, for example, but an imperfect one to be beneficent. One discharges the imperfect duty of beneficence by adopting among one's ends the happi- ness of others. Doing entails no action in particular, but-and this is key-if one does nothing, then one has not, in fact, made others' happiness one's end. Put another way, one does not make others' happiness one's end merely by wishing them well (that is mere benevolence) or even just by planning to help them. What makes the best sense of Pufendorf's argument is adding the next step (which is not explicitly in Kant, but I think he would accept): circumstances sometimes make it that there is an action that no one who has made others' happiness her end could refrain from doing. Put another way: there are circumstances in which I could not refrain from helping a particular person in a particular way and it be true that I have made others' happiness my end. This is not to say that in those circumstances the duty to which I am subject has been perfected, because neither its foundation nor basic structure have been altered. Rather it has been made determinate. If the distinction between an imperfect duty made determinate and a perfect duty is sound, then arguably it vindicates the care Pufendorf took not to claim that the needful taker gains a right to the owner's property but rather to claim that she does not wrong him in seizing it. The former seems possible only if the duty is perfected. The latter, we might say, is the correlative of the property owner's imperfect duty to aid having been made determinate. So while for Grotius the right of necessity is a property right, for Pufendorf it is per- sonal. It is a right that another allow one to use her property. That right correlates to the property owner's imperfect duty to aid, which duty has been made determinate by the necessitous circumstances. On what does their disagreement turn? To start, note again that for Pufendorf, a property owner's right to exclude in an important sense does not run out at the point of necessity. While, on his account, as we saw earlier, "property was not distinguished with the purpose of allowing a man to avoid using it in the service of others, and to brood in solitude over his hoard of in choosing to thus avoid and brood, one would be acting within one's rights as an owner. The needful taker's claim is a claim that another exercise his (the other's) rights to a particular end. By contrast, for Grotius the needful taker exercises her (the needful taker's) right to the property. Her claim is exercised in a normative space that marks one limit to the owner's right to exclude. 48 Immanuel Kant, The Metaphysics of Morals 153 (Mary Gregor ed., 1996) (1797). 49 Pufendorf, supra note 41, at 301.</p><p>34 DENNIS KLIMCHUK Grotius and Pufendorf were in agreement as to the measure by which the scope of the right to exclude is determined. Their disagreement was in its application. On Pufendorf's account, the introduction of property provides persons the means "of making a richer dis- play of humanity and kindness to others, while before that time they could aid others only by their own personal His claim is not just that in fact among the goods of pri- vate property is that it expands the means by which we can discharge the imperfect duty of beneficence. It is that part of what justifies the adoption of private property is that it does Property owners have the right to exclude the imperiled trespasser precisely that they have the opportunity to waive its exercise in fulfillment of a duty of humanity. So we can find implicit in Pufendorf's argument his endorsement of the principle on which I argued Grotius's account of necessity rested, namely, that the right to exclude may only be as strong as is necessary to secure the benefits of a regime of private property. What they disagree on is what benefits we ought to seek to secure. For Grotius, the list stops short of providing greater opportunities for the cultivation of virtue, and for him the scope of the right to exclude is commensurately narrower than it is for Pufendorf. This disagreement, in turn, rests on two issues. First: here we see Pufendorf endorse the Aristotelian view that it is among the responsibilities of the state to enable its citizens to cultivate virtue, that among the goods whose realization justifies the adoption of pri- vate property is that it affords greater opportunities to act virtuously than does commu- nal ownership, and that the scope of property rights ought to be set with an eye to this end (among others). 51 While he does not address the question explicitly, Grotius's rejec- tion of this view is implicit in his account, which we might therefore say is more classi- cally liberal on at least one measure. We might think this feature of his account tells us something about Grotius's conception of the good or of what sorts of goods he thinks are aptly pursued through legal institutions. More consonant with his account, I would sug- gest, is attributing to him the view that to the extent that Pufendorf's account leaves the needful taker's fate in another's hands, morally speaking, it fails to respect natural equity. Second: Implicit in each of Pufendorf's and Grotius's accounts is the claim that the right of necessity is required by equality, but they disagree as to what equality requires, or, perhaps, at what point it imposes its obligations. For Pufendorf, property rights are subordinate to a regime of virtue that is essentially egalitarian. The person who broods in solitude over his riches fails to discharge a duty owed to others simply because they are persons like him. The duty of beneficence is, in his words, a duty of humanity. For Grotius, by contrast, rights of private property are limited by the condition that they be in conformity with the equality upheld by the original use right. Here we see the heart of his account of the right of necessity. On Grotius's account, in short, the world is each of ours, and there is a sense in which it remains even after we have adopted a regime of private property: our equality, once expressed in common ownership, now limits the ways in which we can, through the institutions we adopt, make ourselves vulnerable to being excluded by others from the world we share. 50 Id. at 302. 51 See Aristotle, Politics 26-27 (Stephen Everson ed., 1988).</p><p>NATURAL RIGHTS AND NATURAL LAW 35 V. CONCLUSION It is not unreasonable to think that a political and intellectual world in which the start- ing point of thinking about property is the original community of ownership in an anar- chic state of nature is a world at some distance from ours. The classic social contract theorists thought they were, in part, describing the actual world, which appeared to them still significantly unowned, in point of fact and of right. There is every reason to take moral issue with this idea and, furthermore, to wonder whether much light is likely to be shed on the structure and content of ownership in our world by accounts of the original acquisition of land. In answer to both worries, consider Grotius's claim that certain distinctions lawyers draw among kinds of ownership will be very easily explained if, in imitation of the method employed by all the poets since the days of Hesiod as well as by the ancient philosophers and jurists, we draw a chronological distinction between things which are perhaps not differentiated from one another by any considerable interval of time, but which do indeed differ in certain underlying principles and by their very While Grotius casts the steps taken away from it as a series of events in history, the origi- nal community of property on his account and throughout the early modern tradition is really-or - at least is also-a conceptual starting point, a representation of how we stand with respect to one another in the world abstracted from the institutions through which we administer the regime of private property. Grotius and others in the natural law tradition cast the moral aspect of that standing in terms of the natural laws that protected the natural rights of equals. I've tried to answer the mirror-image worries that this language expresses an approach in one sense, too, and in another, insufficiently, metaphysical for modern sensibilities, by suggesting a way of reading two debates that are, I think, exemplary of the tradition. As I have recon- structed them, Grotius's and Locke's disagreements about the foundations of property rights and Grotius's and Pufendorf's about the foundations of the right of necessity are, at their core, disagreements about how to render private ownership consistent with equality. The common ground against which these disagreements is framed is the view that through its doctrines the institution of private property inevitably expresses some view on this question, and in this way reveals its connection to the rest of our moral lives. If this is right, and can be generalized to private law more broadly, then perhaps we can see the natural lawyers as fellow travelers with those who hold that, in undertaking to get down to brass tacks, the realists were obscuring rather than illuminating what pri- vate law is really about. 52 Grotius, Commentary on the Law of Prize and Booty, supra note 11, at 315.</p>